On 9/28/98, Marilyn Fogelsinger <mfogelsinger[_at_]earthlink.net> wrote:
>
> In particular, my question is this. Fox Network has recently "shut
> down" many "unauthorized" X-Files web sites for copyright violations.
> These pages had downloadable pictures, sound clips, and Win 95 Themes
> from the TV show. None of these pages charged for the materials, and
> none of them "debased" the materials in any way. Is there a "fair use"
> exception for web pages like this, or is there any other way (short of
> paying royalites, fees, etc.) that such a web page administrator may
> use these copyrighted materials?
The success of a fair use defense is always difficult to predict, but in my opinion the use you describe would not be deemed fair. The first argument you assert is that there is no apparent commercial gain. Even assuming that to be true, it is not a definitive end to the inquiry. The website owner is clearly affecting the potential market of the copyright owner and causing potential economic harm to the owner. And it is not noncommercial use of a personal nature but, rather, quite public. The use takes entire works. It is hardly transformative. And the nature of the work is expressive. The second argument, that the materials are not altered in any way, is irrelevant. This is straight reproduction and, to my mind, a clear infringement.
Think of an example. What would happen if I wrote a novel? Someone then copied that novel and put the entire novel up on their website for the world to download for free. How can that be *fair*?
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